Risks for future medical issues and the ADA

Paul Sweeney

Posted11/25/2019 1:00 AM

From time to time, employers express concerns about the health issues an employee or applicant may develop in the future due to his or her current physical condition, particularly weight. Whether the employer is focused on future safety concerns, the individual's longevity or potential workers' compensation claims, these conversations can get a bit dicey. One question that arises is whether the individual is protected by the Americans with Disabilities Act of 1990 (ADA). The U.S. Court of Appeals for the Seventh Circuit -- the circuit that covers Indiana, Illinois and Wisconsin -- addressed this issue in two decisions this year related to obesity. In both decisions, the court found that obesity alone is not a physical impairment and, therefore, not an actual disability, under the ADA. Several other U.S. Courts of Appeals agree. While this sounds like an easy answer, as with many employment-related issues, the analysis does not end there. Employers need to remember that there are other ways in which an employee or applicant can be protected by the ADA. For example, in the case of obesity, if an underlying physiological condition causes the individual's obesity, the individual may still be disabled based on that underlying condition. In addition, if an employer regards an employee as having a physical or mental impairment, the individual will be protected by the ADA. The most recent Seventh Circuit decision on obesity explored the "regarded as" prong further, providing some interesting insights into statutory interpretation that may be beneficial to employers.

The Seventh Circuit's decision, issued on Oct. 29, 2019, looked at: "[W]hether the ADA's 'regarded as' prong covers a situation where an employer views an applicant as at risk for developing a qualifying impairment in the future." In that case, the employee's obesity purportedly put the employee at risk for sleep apnea, diabetes and heart disease, which, according to the Seventh Circuit, "undisputedly qualify as impairments under the [ADA]." The Court -- in a holding that would likely put a smile on every high school English teacher's face -- found that the risk of developing an impairment in the future insufficient for coverage under the ADA. The Seventh Circuit focused on the text of the statute, mentioning the flaws of using passive voice in statutory language and discussing whether the word "having" in the phrase "being regarding as having an impairment" is a gerund or a present participle. No need to crack open your old grammar books or Google the answer. The Seventh Circuit concluded that: "[N]o one would understand the sentence, '[An employee] is being regarded as having sleep apnea,' to mean anything other than [the employee] is viewed today as currently suffering from sleep apnea. 'Having' means presently and continuously. It does not include something in the past that has ended or something yet to come. To settle the technical debate, it is a present participle, used to form a progressive tense." (Emphasis added.) Simply put, to be covered, an employer must regard the employee or applicant as having a medical condition now -- not as being at risk for developing a medical condition in the future.

When the legislature expanded the definition of a disability in 2008, many commentators predicted that courts and juries would (or should) no longer scrutinize whether a plaintiff was "disabled" as defined by ADA, instead focusing on the alleged discriminatory practice or action. As demonstrated by this recent decision, it is not quite that simple for employers. The expansion of the definition of a disability has not eliminated the need, in some situations, for a preliminary analysis of whether the individual has "disability," particularly when employers are faced with claims of discrimination.

Here are some practical tips employers can follow when addressing employees with (actual or potential) medical conditions:

• DON'T presume that ALL employees who have or appear to have medical conditions are disabled as defined by the ADA. There are still limits, and you don't want to get stuck in a "regarded as" claim because you presumed the individual is disabled. When needed, do your own analysis of whether the employee actually has a "physical or mental impairment" (viewing these terms broadly) and then determine whether said impairment "substantially limits one or more major life activities" of the individual (remembering that things like thinking, walking, working and interacting with others are major life activities). Consult an attorney if the answer is unclear.

• DON'T presume that because something is not a "disability" under the ADA that you are in the clear -- employer's need to consider state and local laws also. For example, although obesity alone has not been found to be a disability under the ADA, it has been found to be a "disability" under various state laws, e.g., Washington and Montana, to name a few.

• DON'T presume that an employee or applicant who is obese is not disabled under the ADA -- the case law has made clear that obesity caused by an underlying physiological disorder or condition is likely a disability under the ADA.

• DO focus on whether the individual is qualified for the job. A person is qualified if he or she has the background required for the job and can perform the essential functions of the job (either with or without a reasonable accommodation). In many situations, this question is more important than whether a person is disabled. Bonus tip: To make this determination, it is helpful to have up-to-date job descriptions or at least a good handle on the (real) essential functions of each position.

• DO remember that if an individual is a qualified individual with an actual disability, employers are obligated to provide reasonable accommodations, if needed, and engage in an interactive process with the employee to discuss the potential accommodations. It is helpful to have a written reasonable accommodation policy and to document the actual process/steps taken with the employee. Also, make sure you train your supervisors, managers and human resources personnel on handling requests for accommodations. In most cases, it is best for those requests to be funneled through human resources.

• DO consult legal counsel if you have ADA questions or concerns.

Please contact Paul Sweeney at (317) 236-5894 or paul.sweeney@icemiller.com, or another member of Ice Miller LLP's Labor, Employment and Immigration Practice Group if you have any questions regarding this article. This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.

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